5-4 Hypocrisy
5-4 Standard Illegitimate Supreme Court decisions.
By Robert Alt, adjunct fellow, John M. Ashbrook Center for Public Affairs
The whispering campaign has already begun. The U.S. Supreme Court's 5-4 decision this weekend to issue an injunction was "politically motivated," and according to Jesse Jackson, newly anointed leader of the election-by-any-means-necessary movement, a 5-4 decision in favor of George Bush would be illegitimate. This is rank hypocrisy. Not one of them complained when the Florida supreme court issued its razor thin 4-3 decision, suggesting that all that matters is whose ox, for lack of a better term, is Gored.
It is ironic that a party whose judicial icon is William Brennan — a jurist known for saying "With five votes you can do anything" — has now discovered a supermajority requirement for Supreme Court decisions to be "legitimate." But having learned over time that the Left clearly knows best what the law requires — they've found things in the Constitution that I completely missed! — I will therefore concede the standard, and as a public service, list a few of the "illegitimate" decisions offered by 5-4 votes by the U.S. Supreme Court.
Abortion takes a big hit with the "5-4 decisions are illegitimate" standard. First to fail the new test is Planned Parenthood v. Casey, the decision extending Roe v. Wade and implementing the "undue burden" test. With this decision, we lose the language of a justice who has been described recently as part of the right-wing cabal — Justice Kennedy — who wrote "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." It will be a shame to see this language go, but if it must, it must. If we can't have the undue burden test, then we can't have cases that apply it, so out goes Stenberg v. Carhart, the 5-4 decision striking down partial-birth abortion laws. But then, prohibiting infanticide is a small price to pay to make sure that Al Gore becomes president.
In the area of free speech, flag burning becomes illegal again, because the two cases considering the issue — Texas v. Johnson and United States v. Eichman — were both 5-4. As long as we're talking about speech, you no longer have the right to remain silent. Miranda v. Arizona had four dissenters, and while the decision last term reaffirming this principle in Dickerson v. United States was 7-2, it relied on this now dubious and illegitimate authority, and therefore may not be good law either.
Miranda brings us to the criminal-law context, and as legal scholar Todd Gaziano of the Heritage Foundation made clear in a recent interview with the Washington Times, if 5-4 is the no longer sufficient then so-called rights start to hit the fan. First you have Mapp v. Ohio, the 5-4 decision creating the exclusionary rule, which allows criminals to skate if the evidence used for their conviction is improperly obtained. Then of course there is Furman v. Georgia, in which the Supreme Court struck down by the "illegitimate" vote of 5-4 all state and federal death-penalty statutes. The death penalty was reinstated in a later case, but only after significant machinations to meet the Furman requirements.
Then comes the crown jewel of liberalism: The New Deal. In West Coast Hotel v. Parrish, a 5-4 majority upheld a state minimum-wage law for women, and began a reverse of the court's previous rulings in favor of freedom of contract. The decision was even more "politically motivated" than anything at issue here, because the president was threatening the court directly with a plan to pack it with more liberal justices to uphold his New Deal policies. Accordingly, when Justice Roberts changed his vote in Parrish, it was widely referred to as "the switch in time that saved the nine," even though the case was allegedly decided before the court-packing plan was announced. Just two weeks later, the court decided NLRB v. Jones and Laughlin by the same 5-4 margin, thereby upholding the authority of the National Labor Relations Board to regulate the dismissal of union organizers. If this case falls, so does the NLRB, and with it much of union clout. Also threatened by this case falling is the authority found therein for the government to regulate in areas "affecting commerce," which has been used by Congress to pass everything from restrictions on growing wheat for personal use, to workplace regulations, to criminal laws. But if 5-4 decisions are no longer legitimate, then I guess we'll just have to live with that.
No longer content with questioning ballot counts, Gore supporters are now seeking to apply these same well-honed nay-saying skills to Supreme Court vote counting. But don't be fooled: 5-4 decisions, like ballot counts, are only illegitimate when they don't meet the liberal agenda. |
